Electronic copy available at: http://ssrn.com/abstract=1399661
46
de
•
novo
BLUSHING OUR WAY PAST HISTORY
Seth Barrett Tillman
*
Legal academics and the public are fascinated by bothconstitutional text and the processes by which it isinterpreted. The precise role for legal academics in theinterpretation of such charters is controverted. Doctrine andcase law as established by the courts remain the core of academic legal discourse. Case law is, after all, the objectabout which doctrine is based, built, and extended. But theinterpretation of constitutional text through case law comeswith costs
—
it seems to lack democratic legitimacy, and whereunconnected to text and history, it has a tendency to fence out(even the well-educated) public. On the other hand, whenlegal academics shift to text and history, their work gainspopulist credentials, but, at that point, the legal academicrisks his privileged position. For the legal academic has nomonopoly, or even highly developed expertise, with regard totextual exegesis or the best use of historical materials. Inlight of those attendant risks, I want to praise ProfessorGeoffrey R. Stone for taking on the role of exegete andhistorian in his recent publication appearing in the
UCLALaw Review
.
1
But that said, I find some of his specific textualand historical claims troubling. I respond to his textual andhistorical claims in detail below. This paper, however, has
no
grand normative claim of its own; it is merely an effort on mypart to correct the record, and thereby to further the objectpursued first by Profe
ssor Stone: ―to know the truth about the
Framers, about what they believed, and about what they
*
Seth Barrett Tillman is a career federal law clerk. The views expressed aresolely my own. While this version has been shortened, an unabridged version willappear at: Seth Barrett Tillman,
Blushing Our Way Past Historical Fact AndFiction: A Re
sponse to Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial
Lecture and Essay
, 114 P
ENN
S
T
.
L.
R
EV
. 391 (forthcoming 2009) (unabridgedversion),
available at
http://ssrn.com/abstract=1333576.
1
Geoffrey R. Stone,
The World of the Framers: A Christian Nation?
, 56 UCLA
L.
R
EV
. 1 (2008).
C
ARDOZO
L
AW
R
EVIEW
Electronic copy available at: http://ssrn.com/abstract=1399661
2009
BLUSHING OUR WAY PAST HISTORY
47
aspired to when they created this nation.‖
2
I
A
N
A
NALYSIS OF
P
ROFESSOR
S
TONE
’
S
T
EXTUAL
C
LAIMS
In his
The World of the Framers: A Christian Nation?
,Professor Stone wrote:
Indeed, it is quite striking, and certainly no accident, thatunlike the Fundamental Orders of Connecticut, the U.S.Constitution made no reference whatsoever to God and
cited as its primary source of authority not ―the word of God,‖ but ―We the People.‖ The stated purpose of theConstitution was not to create a ―Government establishedto God,‖ not to establish a ―Christian nation,‖ but rather to
create a secular state. The
only
reference to religion in theoriginal Constitution prohibited the use of any religious testfor holding office, and the First Amendment made clear
that there ―would be no Church of the United States.‖
3
Are these claims sound? Is it ―striking‖ that the
Constitution of 1787 stylistically veered from theFundamental Orders of Connecticut
—
an instrument 150years older than the Constitution at the time of ratification?
Is it true that the text makes ―
no reference whatsoever toGod
‖? Is it true that the ―
only
reference to religion‖ in the
original unamended text was the Religious Test Clause? Tome at least, these seem to be an unusually strong set of (textual) claims for a law review article: claims lackingrecognition of ambiguity and contrary points of view.
The Attestation Clause
. Every copy of the Constitution Ihave seen since childhood ends with:
Done in Convention by the Unanimous Consent of theStates present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eightyseven and of the Independence of the United States of America the Twelfth . . . .
4
Is not that a direct textual reference to God, even if notyour God or mine, or even if you do not believe in any God atall? I am certainly not suggesting that the presence of thisclause makes ours a Christian nation, nor am I suggestingthat even any one Framer or Ratifier thought that this clausehad a justiciable meaning that could control a live case or
2
Id.
at 26.
3
Id.
at 5 (footnotes omitted) (emphasis added).
4
U.S. C
ONST
. art. VII, cl. 2 (Attestation Clause).
But see
id.
art. V (referring,without more, to
―the Year One thousand eight hundred and eight‖).
48
CARDOZO LAW REVIEW
DE•NOVO
2009controversy. But in making his argument that the UnitedStates Con
stitution created a ―secular‖ nation, that the text
makes
―no reference whatsoever to God,‖ Professor Stone has
simply ignored the actual text of the Constitution he seeks toexplain.
The Oaths and Affirmations Clause
. Nor is this the onlysuch clause in the Constitution that makes some (albeitindirect) reference to God. The Article VI Oaths or Affirmations Clause mandated that all future federal andstate legislators and certain officers take an oath oraffirmation to support the Constitution.
5
What is thedifference between an oath and affirmation? The consensusview
—
and as far as I know the universal view
—
is that the
former is taken in God’s name, but the latter is not.
6
Thepurpose of the clause
—
according to the standard narrative
— was to permit Quakers and others having ―a religious or other
conscientious objection to oath-
taking‖ to also hold publicoffice. The purpose is one of ―inclusiveness and tolerance,‖
7
but it is also a textual reference to God in our public charter
—
albeit an indirect one.
The Sundays Excepted Clause
. Another clause that mightinterest us is the Sundays Excepted Clause, which provides:
―If any Bill shall not be returned by the President within ten
Days (
Sundays excepted
) after it shall have been presented tohim, the Same shall be a Law . . .
.‖
8
Does this clauseestablish any specific or named religion? No. Does itestablish a particular church? No. But if the intent of the
Founders or Ratifiers had been ―to create‖ no more and no lessthan ―a secular state,‖
9
then ought not Professor Stone tell uswhy this clause was included in the Constitution, and therebyentrenched against mundane democratic action? One wonderswhat purpose or purposes Professor Stone believes this clausewas meant to serve.
The Religious Test Clause
. Additionally, I note thatProfessor Stone wrote that the Religious Test Clause prohibits
―the use of any religious test for holding office.‖ I do not mean
to quibble, but his position is not quite right
—
or, at the veryleast, his position is not the only possible understanding of the
5
See
U.S. C
ONST
. art. VI, cl. 3 (―Oath or Affirmation‖);
see also id.
art. I, § 3, cl. 6(mandat
ing that Senators adjudicate impeachments ―on Oath or Affirmation‖);
cf. id.
art. II, § 1, cl. 8 (mandating that the President
―swear (or affirm)‖ to his ―Oath or Affirmation‖).
6
See, e.g.
, 67 C.J.S.
Oaths and Affirmations
§§ 1
–
3 (2008).
7
A
KHIL
R
EED
A
MAR
,
A
MERICA
’
S
C
ONSTITUTION
:
A
B
IOGRAPHY
301 (2006).
8
U.S. C
ONST
. art. I, § 7, cl. 2 (emphasis added).
9
Stone,
supra
note 1, at 5.
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